The OiNK Fallout: Should Its Ex-Users Be Watching Their Backs?


Once the OiNK news broke, Jess got a request from his pal Mark Pytlik: “hey, if you havent already, you guys seriously need to talk to an internet copyright lawyer and figure out how much danger oink’s userbase is actually in right now. there are a ton of people bricking themselves out there and no sites or blogs seem to have much in the way of reliable information as far as that stuff goes.” Informed speculation? On the Internet? That’s such an anomalous occurrence that I had to track down a couple of legal types, and asked them how much OiNK’s now-former-users should be worrying about the possibility of their being prosecuted.

First, I chatted with an American intellectual property litigator who asked to remain anonymous, and asked him basically the same question posed by Pytlik:

They should be very, very scared. There are at least two reasons why this is not just your average, everyday, run-of-the-mill file sharing copyright infringement: this involves music that has not yet been commercially released, and money changed hands.

Because the music has not yet been commercially released, as a practical matter, the fair use defense effectively disappears. The leading case involved The Nation beating Harper & Row to press by publishing merely “between 300 and 400 words” of President’s Ford’s memoirs; the Supreme Court held that “The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right.” Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 548-49 (1985). “First publication is inherently different from other [exclusive copyright] rights in that only one person can be the first publisher;… the commercial value of the right lies primarily in exclusivity. Because the potential damage to the author from judicially enforced ‘sharing’ of the first publication right … is substantial, the balance of equities in evaluating such a claim of fair use inevitably shifts.” Id. at 553.

That fact also makes it criminal infringement, because it is “the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.” 17 U.S.C. § 506(a)(1)(C). (A “‘work being prepared for commercial distribution’ means … a musical work … or a sound recording, if, at the time of unauthorized distribution (i) the copyright owner has a reasonable expectation of commercial distribution; and (ii) the copies or phonorecords of the work have not been commercially distributed.” 17 U.S.C. § 506(a)(3)(A).) Of course, it’s also criminal because “the infringement was committed … for purposes of commercial advantage or private financial gain.” 17 U.S.C. § 506(a)(1)(A).

Prison terms for this stuff run up to 3-5 years for first offenses, 10 years for repeats. 18 U.S.C. § 2319(a), (c).

Yipes! As a follow-up, I asked two questions: Whether or not it was likely for prosecution to occur in the US, and whether or not the idea that any money that changed hands was donated–as opposed to the fees being a membership requirement–made a difference as far as “commercial distribution” goes:

The legal issue of what constitutes infringement in the US stays the same–there still has to be an infringing act in the US, or importation into the US. There are probably differences among the protections that US, UK, Netherlands, and EU law afford to subscriber information, but unfortunately, I don’t know the other countries’ law, so I don’t know whether those differences are material.

As far as money goes, remember that “commercial advantage or private financial gain” can include the benefits of barter and the like. So the fact that, in your [description of OiNK’s ratio rules], “they had to assist in infringement in order to keep infringing” might be enough.

Ah, those ratio requirements–they’ll always get you.

Later, I had a quick IM exchange on the subject with MCBarrister, a Washington-based attorney with a background in IP and Internet law:

mauraidolator: So basically I am curious as to whether or not you think it’s likely that authorities in the US will try to go after American users of OiNK; there’s a threatening message on the front page of the site right now, and the freaking-out has commenced, as you might imagine.MCBarrister: I think it depends on how quickly the RIAA gets its hands on any of the server logs. That’s partly facetious, but I don’t see the U.S. Department of Justice using its resources right now for criminal investigations of copyright infringement. The overseas raids were criminal matters–I don’t expect the same here. Plus, there’s an interesting issue of whether the UK and Dutch authorities would share the information with a private party. There are long-running debates over data treatment and security between the US and EU. But if RIAA does get the logs and data, then there will be hell to pay for anyone who used credit cards [to donate]; those who maintained membership via upload will be a little harder to trace because you’d have to follow the IP addresses, and ISPs are not always willing to hand over their customers without court ordersmauraidolator: i’m pretty sure that the donations were done via PayPal.MCBarrister: Hrmmm. PayPal is owned by eBay, which has pretty liberal policies about helping IP rights owners. I think it would still take a court order, but PayPal / eBay would be more likely to hand over personally identifying information that universities have proven more unwilling to give.mauraidolator: What is interesting to me is the rough estimates of where the users came from — I’ve read that the US-based membership of the site was as high as 50%, even though the site was located in the UK.MCBarrister: It’s not that surprising, depending on the content. I graduated from college before there was a graphical Internet, so I never really participated in these activities–but I have a rough sense that lots of US-based university students were playing since they have access to the best net connections around. My cable modem would choke on the kind of uploading necessary to support what I would want back down, assuming I had anything that was of value to the network in my vinyl rips.mauraidolator: same hereMCBarrister: My bottom line–there should be some level of fear, but the action is going to be from the RIAA (again), not the feds, unless a new US Attorney General (once confirmed) has a real passion for prosecuting IP violations.mauraidolator: Has there been any word on his attitude towards IP violations yet?MCBarrister: I haven’t noticed–the mainstream coverage has focused on his willingness to back the administration’s claims of independence from the rule of law when it affects them personally, and a short time searching on Google turns up nothing more relevant.

So, there you have it. And if the new US Attorney General is excited by the idea of going after illegal downloaders? Well, look on the bright side, ex-OiNKers: There could always be another terrorist attack! That would certainly tie him up for a while.